Issues Involved in Enforcement of Environmental Legislation

In pursuance of the Water (Prevention & Control of Pollution) Act. 1974, the Central Government set up a Central Board for the Prevention and Control of Water Pollution. Similar Boards were set up in various States at different points of time when the Act was adopted by the State Legislatures.

Subsequently, the responsibility for enforcement of the Air (Prevention & Control of Pollution) Act, 1981 was also entrusted with these organisations which were renamed as the Central and State Pollution Control Boards. With the enactment of the Environment (Protection) Act, 1986, which is an umbrella legislation, the Cen­tral Government assumed the overall responsibility of “environmental protec­tion and improvement”.

Although the Act empowered the government to desig­nate Authorities for specific tasks, separate machinery for enforcement of the Act was not set up or designated except the Central Ground Water Board which was designated as the Central Ground Water Authority.

It is only in recent times, empowered Authorities have been constituted for specific assignments which include the following:

(1) Environment Pollution (Prevention & Control) Authority for National Capi­tal Region set up in January, 1998;

The powers of the Environment (Protection) Act have been exercised by the Central Government through the Ministry of Environment & Forests. How­ever, the monitoring mechanism for implementation of the Act is still unde­fined although for the various regulations enforcement institutions have been enlisted. Also, in several areas of environmental concern such as vehicular- pollution control, the Ministry of Environment & Forests has no decisive role since it is implemented by a separate Ministry through the Motor Vehicles Act.

Three issues that are especially important for environmental legislation are:

1. The precautionary principle:

This principle has evolved to deal with risks and uncertainties faced by environmental management. The principle implies that an ounce of prevention is worth a pound of cure it does not prevent problems but may reduce their occurrence and helps ensure contingency plans are made.

The application of this principle requires either cautious progress until a development can be judged ‘innocent’, or avoiding development until research indicates exactly what the risks are, and then proceeding to minimize them.

Once a threat is identified, action should be taken to prevent or control damage even if there is uncertainly, about whether the threat is real. Some environmental problems become impossible or costly to solve if there is delay, therefore waiting for research and legal proof is not costless.

2. The polluter-pays principle:

In addition to, the obvious the polluter pays for the damaged caused by a development this principle also implies that a polluter pays for monitoring and policing. A problem with this approach is that fines may bankrupt small businesses, yet be low enough for a large company to write them off as an occasional overhead, which does little for pollution control.

There is, thus, debate as to whether the principle should be retrospective. Developing nations are seeking to have developed countries pay more for carbon dioxide and other emissions controls, arguing that they polluted the global environment during the Industrial Revolution, yet enjoy the fruits of invention from the era.

This principle, in fact, is more a way of allocating costs to the polluter than a legal principle. This principle was adopted by OECD member countries in 1972, at least in theory.

3. Freedom of information:

Environmental planning and management is hindered if the public, NGOs or even official bodies are unable to get information. Many countries have now begun to release more information, the USA has a Freedom of Information Act, and the European Union is moving in this direction.

But still many governors and multinational corporations fear that industrial secrets will leak to competitors if there is too much disclosure, and there are situations where authorities declare strategic needs and suspend disclosure.